Porn prosecution fuels debate

President Barack Obama’s Justice Department has quietly agreed to move a pornography prosecution out of socially conservative Montana to more urbane New Jersey – fueling perceptions by some attorneys that the new administration is stepping back from the aggressive approach the Bush administration took to prosecuting obscenity.

“This is a substantial change of position,” said Louis Sirkin, an attorney who has represented many in the pornography industry, including Hustler publisher Larry Flynt. “The new administration has come in there and made a new determination….It certainly is different than what we have seen in the past.”

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“I think it has a lot to do with the change in administration,” said a former federal prosecutor, Laurie Levenson of Loyola Law School. “It makes you wonder how far they were pushing the envelope before…..These cases are fraught with problems and are not a high priority.”

The Justice Department issued a press release Friday evening announcing that Barry Goldman, 58, of Jersey City was indicted by a New Jersey federal grand jury for shipping what prosecutors said were obscene DVDs to Virginia and Montana. Goldman allegedly operated a web-based business called the “Torture Portal.”

The press release didn’t mention that Goldman was indicted by a federal grand jury in Montana last August for some of the same shipments, which he unwittingly made to the FBI. Nor was it mentioned that Justice Department prosecutors challenged a federal judge’s ruling transferring the case to New Jersey—before abruptly dropping the fight in May and agreeing to the transfer.

Since a 1973 Supreme Court decision required juries to assess “contemporary community standards” in obscenity cases, the venue for such prosecutions has become a pivotal issue. Critics of Republican administrations have accused them of deliberately bringing such cases in conservative places like Tennessee, Mississippi and Oklahoma.

Social conservatives railed against the Clinton Administration for not prosecuting adult obscenity and were disappointed when few such cases were brought in the early years of the Bush Administration. Things perked up a bit in 2005 when Attorney General Alberto Gonzales set up an Obscenity Prosecution Task Force, which ultimately focused on prosecuting fetish, bestiality and so-called fringe porn.

Six months into the Obama Administration, the task force is still in business and is still headed by a former U.S. Attorney for Utah under President Ronald Reagan, Brent Ward.

“Ward is still around. This has been somewhat surprising to a lot of us,” Sirkin said.

Since Obama’s inauguration, prosecutors have pressed on with pending obscenity cases and accepted guilty pleas in one high-profile prosecution brought in Pittsburgh. However, there have been no announcements of new adult obscenity indictments, a trend that Justice Department officials declined to discuss, though they did note that federal prosecutions for child pornography have continued apace.

Earlier this year, Goldman’s public defender, David Merchant, asked Billings, Montana-based Judge Richard Cebull to transfer the case to New Jersey because there was no apparent connection to Montana aside from undercover FBI agents asking Goldman to send the DVDs there. “There is no doubt that this case…is the epitome of venue shopping,” Merchant wrote.

In March, Cebull, an appointee of President George H.W. Bush, agreed to ship the case out to New Jersey. He noted that an undercover FBI agent from Virginia first met Goldman at an adult entertainment convention in Las Vegas in 2006. “This court is concerned with taking up Montana court time with out-of-state defendants who could potentially be prosecuted elsewhere,” the judge wrote.

Prosecutors quickly moved for a stay of Cebull’s order and then filed a rare mid-case appeal with the 9th Circuit, asking the court to expedite its consideration of the issue. After the judges agreed to hear arguments in early June, the Justice Department abruptly reversed course, saying that the indictment should never have been sought in Montana in the first place.